Jawboning Defendants Are 6-for-6 in the Ninth Circuit–Hart v. Facebook

This is a routine jawboning case. Facebook and Twitter allegedly shut down Hart’s accounts for disseminating COVID misinformation. Hart claims he was targeted by the government. The district court dismissed the case (1, 2).

The Ninth Circuit affirms in a brief memo opinion. The court says simply: “As private companies, Twitter and Facebook are not subject to the Constitution’s constraints.” (Cite to O’Handley). Hart alleged Twitter and Facebook engaged in joint actions with the government. However, “Facebook and Twitter’s rights to moderate his posts arise from their user agreements with Hart, not from any right conferred by the federal government….Hart has not shown that the Federal Defendants are responsible for Facebook and Twitter’s moderation of his posts.” Hart cited 10 interactions between the government and the services, but none of them referenced him, and the interactions showed the “the federal officials sought to inform Facebook and Twitter of what the government considered to be misinformation about COVID-19.”

As I said, standard jawboning stuff. There are only three mild points of interest in this ruling.

First, Judge Rawlinson concurred only in the result but did not explain her differences with the opinion. I’m not sure what that’s about.

Second, in the next couple of months, the Supreme Court will issue an opinion in the Murthy jawboning case, which could change the rules for this and other cases. The court proceeded anyway: “We agree with the parties that we need not stay consideration of this appeal pending the Supreme Court’s decision in Murthy.” From my perspective, the panel didn’t see any reason to wait because Hart’s case was so weak that they probably couldn’t imagine any way the Supreme Court ruling could make it meritorious.

Third, this is at least the SIXTH time in the past 18 months that the Ninth Circuit has rejected an online jawboning case. (The five others: O’Handley, Huber, Doe v. Google, Kennedy v. Warren, Rogalinski). It’s a reminder of the stakes in the Murthy case. Today, online jawboning cases are easy dismissals (except in the Fifth Circuit, which has tacitly declared judicial independence from the union). However, if the Supreme Court’s Murthy opinion gives any hope to plaintiffs, the resulting litigation tsunami will be enormous.

Case Citation: Hart v. Facebook, Inc., 2024 WL 1693355 (9th Cir. April 19, 2024)


“Federal courts have uniformly rejected attempts to treat…social media companies as state actors under Section 1983.” Rutenburg v. Twitter, Inc., 2021 WL 1338958, at *2 (N.D. Cal. 2021) (“It is undisputed that Twitter is a private company.”) (citing see, e.g.Prager Univ. v. Google LLC, No. 17-CV-06064-LHK, 2018 WL 1471939, at *8 (N.D. Cal. Mar. 26, 2018), aff’d, 951 F.3d 991 (9th Cir. 2020) (concluding that YouTube did not perform a public function simply by hosting speech on a private digital-video platform for the public); Howard v. AOL, 208 F.3d 741, 754 (9th Cir. 2000) (finding no subject-matter jurisdiction for a Section 1983 claim because AOL was not a state actor, even if it allegedly acted as a “quasi-public utility” that involves “a public trust.”); Ebeid v. Facebook, Inc., No. 18-CV-07030-PJH, 2019 WL 2059662, at *6 (N.D. Cal. May 9, 2019) (rejecting the argument that Facebook was a state actor because it allegedly regulated speech in a public forum); Nyabwa v. Facebook, No. 2:17-CV-24, 2018 WL 585467, at *1 (S.D. Tex. Jan. 26, 2018) (finding that the plaintiff had failed to state a First Amendment claim because Facebook was not the government); Shulman v. Facebook.com, No. CV 17-764 (JMV), 2017 WL 5129885, *4 (D.N.J. Nov. 6, 2017) (rejecting the plaintiff’s constitutional claims against Facebook because Facebook was not a state actor); Kinderstart.com LLC v. Google, Inc., No. C06-2057 JFRS, 2007 WL 831806, *13–15 (N.D. Cal. Mar. 16, 2007) (rejecting arguments that Google was a state actor for constitutional claims); Langdon v. Google, Inc., 474 F. Supp. 2d 622, 631–32 (D. Del. 2007) (ruling that Google is a private entity not subject to the plaintiff’s constitutional claims); and Cyber Promotions, Inc. v. Am. Online, Inc., 948 F. Supp. 436, 442 (E.D. Pa. 1996) (concluding that AOL “does not stand in the shoes of the State”)); see also Medina v. Facebook, Meta Platforms, Inc., 2023 WL 8234586, at *2 (M.D. Fla. Nov. 28, 2023) (finding that plaintiff failed to allege a state actor when suing the owner of Facebook and Facebook, a publicly traded company). Furthermore, “a social media company[ ] does not become a state actor based solely on the availability of its social media network to the public….” McWaters v. Houston, 2022 WL 395309, at *11 (M.D. Ala. Feb. 8, 2022) (citations omitted).

Allen v. Facebook, 2024 WL 1795987 (D. Ks. April 25, 2024)

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